In re S.W.

Supreme Court of West Virginia

May 22, 2017

In re: S.W.

(Preston
County 15-JA-15)

MEMORANDUM DECISION

Petitioner
Father C.W., by counsel Justin Gregory, appeals the Circuit
Court of Preston County's October 11, 2016, order
terminating his parental and custodial rights to
S.W.[1]
The West Virginia Department of Health and Human Resources
("DHHR"), by counsel Lee Niezgoda, filed a response
in support of the circuit court's order. The guardian ad
litem ("guardian"), Kristen D. Antolini, filed a
response on behalf of the child in support of the circuit
court's order. On appeal, petitioner argues that the
circuit court erred in terminating his parental and custodial
rights upon a finding that there was no reasonable likelihood
the conditions of abuse and neglect could be substantially
corrected.[2]

This
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

In
February of 2015, the DHHR filed an abuse and neglect
petition against the parents. Specifically, the petition
alleged that petitioner had a long history of domestic
violence toward his girlfriend's three children who lived
in the home.[3] Moreover, the petition alleged that
petitioner was twice arrested for his physical violence
toward the children, including incidents in which he
repeatedly struck the children in the face with various
objects. Lastly, the petition alleged that the home was in
deplorable condition and that petitioner and his girlfriend
failed to provide the children with adequate medical care.

In May
of 2015, petitioner filed a written stipulation to
allegations in the petition, and the circuit court
adjudicated him as an abusing parent. Specifically,
petitioner admitted to having twice been charged with the
crime of child abuse resulting in injury. Petitioner further
admitted to likely emotional damage to the children by virtue
of his arrest in their presence. Lastly, petitioner admitted
that the "charges and arrests may have interfered with
his ability to parent." Accordingly, petitioner's
written stipulation indicated his agreement to participate in
services "to alleviate and improve" his deficient
parenting. As such, the circuit court granted petitioner a
post-adjudicatory improvement period. In February of 2016,
the circuit court granted petitioner an improvement period as
disposition in order to permit additional counseling.

In July
of 2016, the circuit court held a series of dispositional
hearings, during which it heard testimony from the
psychologist treating the children. According to the
psychologist, the children expressed fear of petitioner and
did not want him to return to their mother's home.
Moreover, the visitation supervisor testified that petitioner
only interacted with S.W. during visits, aside from raising
his voice at the other children. This caused the supervisor
concern, especially in light of unsolicited disclosures from
the children regarding petitioner's past maltreatment. In
regard to his court ordered drug screens, the circuit court
also heard evidence that petitioner tested positive for
marijuana in March of 2015 and positive for buprenorphine
without a prescription in March of 2015 and May of 2015.
Moreover, petitioner failed to appear for court ordered
screens twenty-one times from February of 2016 through April
of 2016. Petitioner stopped screening entirely in May of
2016. Further, although he attended the required parenting
and life skills services, petitioner's provider testified
that he did not make meaningful progress with these services,
as evidenced by his inability to implement what he was taught
therein. As such, the circuit court found that there was no
reasonable likelihood petitioner could substantially correct
the conditions of abuse and neglect and terminated his
parental and custodial rights to S.W.[4] It is from this order that
petitioner appeals.

The Court has previously established the following standard
of review:

"Althozugh conclusions of law reached by a circuit court
are subject to de novo review, when an action, such
as an abuse and neglect case, is tried upon the facts without
a jury, the circuit court shall make a determination based
upon the evidence and shall make findings of fact and
conclusions of law as to whether such child is abused or
neglected. These findings shall not be set aside by a
reviewing court unless clearly erroneous. A finding is
clearly erroneous when, although there is evidence to support
the finding, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has
been committed. However, a reviewing court may not overturn a
finding simply because it would have decided the case
differently, and it must affirm a finding if the circuit
court's account of the evidence is plausible in light of
the record viewed in its entirety." Syl. Pt. 1, In
Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d
177 (1996).

Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d
873 (2011). Upon our review, the Court finds no error. On
appeal, petitioner's entire argument appears to be
predicated on his assertion that "no further charges
have been brought against [him], he has not been arrested,
and there have been no allegations that [he] has harmed any
of the children." According to petitioner, this evidence
established that the conditions of abuse and neglect that
necessitated the petition's filing no longer exist. We do
not agree.

Simply
put, petitioner's argument ignores the fact that his
arrests for child abuse resulting in injury were the result
of his abusive actions and inappropriate parenting. His
argument also ignores the fact that he did not have custody
of S.W. during the pendency of these proceedings and, thus,
was essentially precluded from engaging in any further
criminal abuse. Contrary to petitioner's argument that
the conditions of abuse and neglect were corrected, evidence
below established that they persisted throughout the
proceedings, the fact that petitioner did not incur
additional criminal charges in the interim notwithstanding.
During the proceedings, petitioner received two improvement
periods in order to undergo services designed to correct the
conditions of abuse and neglect. We have previously held that

"[a]t the conclusion of the improvement period, the
court shall review the performance of the parents in
attempting to attain the goals of the improvement period and
shall, in the court's discretion, determine whether the
conditions of the improvement period have been satisfied and
whether sufficient improvement has been made in the context
of all the circumstances of the case to justify the return of
the child[ren]." Syllabus Point 6, In the Interest
of Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).

In
granting petitioner an improvement period at disposition, the
circuit court undertook an analysis of his compliance with
his post-adjudicatory improvement period and found that he
failed to comply with the terms thereof. Specifically, the
circuit court found that petitioner was not compliant with
his drug screening and failed to obtain appropriate housing.
Moreover, following petitioner's second improvement
period, the circuit court also determined that petitioner was
not compliant with the terms thereof. Again, petitioner
failed to comply with drug screens. Further, a service
provider testified that, although he completed his parenting
and adult life skills education "on paper, "
petitioner failed to implement any changes in his parenting
behavior as a result of these services. This was evidenced by
"negative interaction" between petitioner and the
children during visits, in addition to his inability to
properly parent S.W.

Based
upon this substantial evidence, the circuit court found there
was no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect
because he failed to follow through with services designed to
remedy the conditions of abuse and neglect, as set forth in
West Virginia Code § 49-4-604(c)(3). Contrary to
petitioner's argument on appeal, this finding was not
clearly erroneous. As set forth above, this finding was based
on substantial evidence, including petitioner's failed
drug screens, refusal to fully comply with screening
requirements, and his inability to properly implement the
skills taught through his services. The circuit court further
found that termination of petitioner's parental and
custodial rights was necessary for the ...

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